Legal Fiction

Law and Literature: A Misunderstood Relation.
By Richard A. Posner.
Harvard University Press. 371 pp. $25.00.

Intellectually speaking, the law-and-literature movement, which got under way in the 1980’s, cannot be said to exist. It pretends to have introduced a pedagogical innovation into legal study, instructing students in the techniques of literary analysis for the purpose of interpreting laws and in the reciprocal use of legal analysis for the purpose of interpreting literary texts. The result, according to advocates of the movement, is not only new conceptual breakthroughs in law and literature alike but more sensitive, humane, and aware lawyers.

Whatever the truth of this last claim, there can be no doubt that the movement is a success: lawand-literature is an accepted subject in law journals, and is taught in our leading law schools. When, however, one looks into what the movement’s practitioners actually write and say, rather than any pedagogical innovation, a familiar political agenda becomes apparent.

Some of the elements of that agenda are exposed in Law and Literature: A Misunderstood Relation, a new book by the movement’s most distinguished opponent. In this book Judge Richard A. Posner systematically refutes the writings of a number of leading lights both of the law-and-literature movement and of the related critical-legal-studies movement: Ronald Dworkin, Roberto Unger, James Boyd White, and Richard Weisberg, along with the cooperating literary critics Terry Eagleton and Stanley Fish. But Posner also ends up—paradoxically and unaccountably—endorsing the movement. As a result, his book stands both as a rebuttal of law-and-literature and as a tribute to the power it has come to exercise in academic circles.

Posner starts with the notion that lawyers can offer special insight into works of literature, by which are meant works that either contain actual trial scenes or otherwise deal in legal matters. Such works include Kafka’s The Trial, Melville’s Billy Budd, Shakespeare’s Measure for Measure, Dostoevsky’s The Brothers Karamazov, and Dickens’s Bleak House. As Posner points out, writers use the law to express a certain idea of necessity, or else as a metaphor for the workings of society; seldom in literature are legal questions per se at issue, or is there anything else about which a lawyer might instruct other readers. This is no doubt why practitioners of law-and-literature end up discussing the law itself far less than one might suppose. James Boyd White, for example, in his discussion of arguments in The Iliad, barely touches on law, and then so generally as to render himself vulnerable to Posner’s devastating remark that “any argument can be analogized to a legal dispute.”

Similarly with the other side of the equation, the notion that literary criticism can be helpful in interpreting law. The trouble here, Posner shows, is that literary interpretation in general aims at exploring richness and variety of meaning in texts, whereas legal interpretation aims at discovering a single meaning. A literary approach can thus only confuse the task of interpreting the law, especially if one adopts current fashions like deconstruction with its doctrine of the inherent uninterpretability of all texts whatsoever.

Posner calls the importation of literary criticism and deconstruction into law “the falsest of the false hopes of the law-and-literature movement.” In fact, he would have been justified in calling it the most politically sinister of the movement’s impositions. For the practitioners of this new field are engaged not in a properly academic but in a blatantly political project: claiming to offer a lawyer’s insight into works of Western literature, they are in reality bent on exposing the rottenness of bourgeois-capitalist society as, supposedly, it is revealed in that literature; using the tools of literary analysis, they aim at exposing the inequities of the same society’s laws, which they see chiefly as a means deployed by the ruling classes to maintain control.

Not that Posner is naive about the politics at issue. He lucidly explains that practitioners of lawand-literature, in common with those in critical legal studies, regard law

as little more than a projection of capitalist ideology. They want to get rid of that ideology, of the Western liberal tradition that subtends it, and of the legal order that protects and legitimates it.

But this arresting summary is delivered in passing, as if bearing no more import than any other item in Posner’s exhaustive recital of the movement’s fatuities and logical inconsistencies. It should instead have been made the linchpin of his analysis.

Posner’s failure to attack the law-and-literature movement forthrightly is all the more strange in that he has himself been attacked by various of its luminaries, and has participated in sharp public debates with, in particular, Richard Weisberg of New York University Law School. In his book Posner does attempt to refute Weisberg’s “unorthodox” reading of Billy Budd, a key text for law-and-literature, but his refutation is curiously muffled.

The trial in Billy Budd is a shipboard drumhead court called by a British sea captain during the war between England and France in 1797. Midshipman Budd, confused and outraged by what the reader knows to be a false charge of planning a mutiny, has knocked down and inadvertently killed the officer who confronted him with the charge. The captain fears that if rumors of mutiny spread among the crew just when the men may be called upon to go into battle at a moment’s notice, his lone ship will be put at risk. He therefore virtually directs the drumhead court to order that Budd be summarily hanged. Yet the captain is also a man of discernment, and he guesses that Billy is innocent of the mutiny charge; he suffers fatherly pangs of regret at having to be the one to condemn him to death.

According to Weisberg, Captain Vere is guilty of distorting the law in the service of a secret resentment which he attempts to exorcise through the hanging of an innocent man. But Billy is not innocent, except of mutiny; he is guilty of killing an officer. Furthermore, as Posner is able to show by offering a more persuasive examination of naval law than Weisberg’s, Captain Vere does not abuse the law.

Posner, however, seems curiously unmoved by the implications of Weisberg’s misreadings. He does observe that liberal literary critics “are uncomfortable with authority, including military authority, and hate capital punishment,” and he points out that Weisberg “expresses sympathy for the criminal act and antipathy toward the people who bring criminals to justice.” But his measured, point-by-point refutation of Weisberg’s reading, which as it happens is hardly an “unorthodox” one among critics and scholars of American literature, has the aspect of a genial parlor game going forward with the windows shuttered against the noise of insurrection out in the street.



Posner has covered every move, but he has not taken the game seriously. He offers a defanged, sanitized version not only of the Billy Budd controversy, but of every question he touches on. Having forthrightly repudiated the claim that lawyers have something to contribute, as lawyers, to literary analysis, he writes nevertheless that law-and-literature is a field with “promise,” a field for which he declares his “warm though qualified enthusiasm.” Why?

Perhaps a clue lies in Posner’s observation that the law has become “inescapably interdisciplinary,” and that critical legal studies, the most radical manifestation of the phenomenon, “looms too large on the horizon of academic law to be ignored.” Perhaps, recognizing the success of a movement that has singled him out for abuse, he has attempted to strike a compromise, paying obeisance to its institutional success by declaring that it “deserves a place in legal teaching and research” while leaving it to others to draw the conclusion from his analysis that it is an entirely factitious undertaking, deserving of no intellectual respect whatsoever.

But if Posner believes in the possibility of achieving a détente with his adversaries, his expectations have already been dashed. Although the jacket of Law and Literature features blurbs by such literary bystanders as Daniel Aaron and Eugene Goodheart, the critic Stanley Fish, who has allied himself with the movement, has pronounced the book “execrable” and has called Posner “an ideologue who is part of the conservative intellectual attack on everything new that has come up in areas like literature, philosophy, or the law in the last 15 years.” Such would appear to be the instructive fate of compromising one’s principles.



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